Kimuri Housing Company Limited v Lukenya Ranching Co-operative Society Limited, Mwanzo Development Company Ltd, Mutie Willy, Muriithia Wa-Andu Company Limited & Commissioner of Lands [2021] KEELC 3041 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 247 OF 2017

KIMURI HOUSING COMPANY LIMITED.............................PLAINTIFF

VERSUS

LUKENYA RANCHING CO-OPERATIVE

SOCIETY LIMITED..........................................................1ST DEFENDANT

MWANZO DEVELOPMENT COMPANY LTD.............2ND DEFENDANT

MUTIE WILLY...................................................................3RD DEFENDANT

MURIITHIA WA-ANDU COMPANY LIMITED...........4TH DEFENDANT

COMMISSIONER OF LANDS.........................................5TH DEFENDANT

RULING

1.  In the Notice of Motion dated 2nd December, 2019, the Plaintiff has sought for the following orders:

a.  That leave be granted to the Plaintiff herein to file and serve a Further Amended Plaint in this matter to include paragraphs 22(h) and 22(i) therein;

b.  That the costs of this Application be in the cause.

2.  The Application is supported by the Affidavit of the Plaintiff’s Advocate who has deponed that on 15th May, 2019, the 2nd Defendant filed a List of Documents including a Sale Agreement between itself and Daniel Kivuu Mulwa dated 3rd May, 1995 and that the signatures of the parties to the agreement was attested by Ameura Amedi and Company advocates.

3.  According to the Plaintiff’s advocate, by its letter dated 1st July, 2019, the Law Society of Kenya has confirmed that they do not have such an advocate in its records and that on that basis, it has become imperative that the Plaintiff re-amends the Plaint to add further particulars of fraud.  There is no indication on record to show that the Defendants filed responses to the Application. The Plaintiff’s advocate filed submissions in respect to the Application which I have considered.

4.  The Application before me is for amendment of the Plaint. The Plaintiff’s Advocate has deponed that the Application for leave to amend the Plaint was occasioned by the information they received from the Law Society of Kenya indicating that the person who purported to attest the signatures of the parties in the Sale Agreement of 3rd May, 1995 is not in their records.

5.  In the case of Eastern Bakery vs. Castelino (1958) E.A 461, the Court of Appeal for Eastern Africa held as follows:

“It will be sufficient to say that amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side…”

6.  In Maria Rosita Cardozo vs. Robert Kibagendi Otachi and Another (2013) eKLR, the Court of Appeal held as follows:

“The overriding consideration in applications for leave is whether the amendments are necessary for the just determination of the controversy between the parties. Likewise, mere delay is not a ground for declining to grant leave. It must be such delay as likely to prejudice the opposite side beyond monetary compensation in costs…”

7.  Considering that the Application for amendment of the Plaint has not been opposed, and in view of the fact that the Plaintiff is seeking to introduce in the Plaint further particulars of fraud based on the letter it received from the Law Society of Kenya, I find the Application for amendment to be merited.

8.  Oder 8 Rule 3 of the Civil Procedure Rules allows parties, with the leave of the court, to amend their pleadings at any stage. For those reasons, I allow the Application dated 2nd December, 2019 as follows:

a.  Leave is hereby granted to the Plaintiff to file and serve a Further Amended Plaint within fourteen (14) days.

b.  Each party to bear his/its own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY IN MACHAKOS THIS 4TH DAY OF JUNE, 2021.

O. A. ANGOTE

JUDGE